Preventing discrimination and valuing diversity

The anti-discrimination legislation applies to:

• job applicants
• all employers in the private and public sectors, vocational training providers, trade unions, professional organisations, employer organisations, and trustees and managers of occupational pension schemes
• employees, other workers - for example, agency and casual workers, office holders, partners of firms and others
• those engaged by a business in a contract for services, for example, contractors and the self-employed

The areas affected by the equality legislation include the following:

• recruitment
• terms and conditions
• promotions and transfers
• provision of training
• provision of benefits
• dismissal
• occupational pensions

You can recruit a job candidate who has a protected characteristic if they are of equal merit to another candidate and you reasonably think that people with that characteristic:

• are underrepresented in the workforce
• suffer a disadvantage connected to that characteristic.

However, you will:

• only be able to take such positive action where it is a proportionate way of addressing the underrepresentation or disadvantage
• not be allowed to choose a less suitable candidate just because they have a protected characteristic that is underrepresented or disadvantaged.

The relevant protected characteristics are:

• age
• disability
• gender reassignment
• marriage and civil partnership
• pregnancy and maternity
• race, ethnic or national origin and nationality
• religion/belief or lack of any religion/belief
• sex
• sexual orientation

Avoiding discrimination during the recruitment process is not only is a legal requirement. It also gives you the best chance of getting the right person for the job.

Remember that job applicants could make an employment tribunal claim against you if they believe you didn't select them for a job because you discriminated against them unlawfully.

Job advertisements

For job advertisements you need to be careful not to imply that an applicant's success in applying for a role depends on them not having a disability. You should not imply that you are unwilling to make reasonable adjustments.

In some circumstances, you can state that being of a particular sex, race, religion/belief, age or sexual orientation is an occupational requirement for the job.

For example, it may be possible to state that being of Italian origin is a requirement for a job as a waiter in an Italian restaurant so that the restaurant has an 'authentic' Italian atmosphere.

Questions about disability and health

The Equality Act 2010 limits when you can make enquiries about health or disability when recruiting. These restrictions apply prior to the point where you:

• make a conditional or unconditional job offer to anyone, or
• include them in a pool of successful candidates to be offered a job when a vacancy arises.

Before that point you should only ask about a candidate's disability or health if you need to find out whether:

• they will be able to take part in some form of selection test
• you will need to make a reasonable adjustment to the interview or test for disabled applicants
• they will be able to do something that is intrinsic for the job in question

However, you can also ask about health or disability if:

• you want to monitor the diversity of your applicants
• you want to take positive action to enable you to recruit more disabled workers
• the job in question is one for which having a particular disability is an occupational requirement and you want to establish that the person has that disability

Application forms

Although you should only ask for the minimum of personal details, there may be certain information you need to ask for in order to avoid discrimination during the selection process. For example, you should ask applicants to indicate if they have any special requirements should they be required to attend an interview or other selection process.

If the applicant's response reveals or suggests that they are disabled, you should take reasonable steps to confirm whether or not they are disabled under the Equality Act 2010. If so, you would have a legal duty to make reasonable adjustments, eg by holding the interview in an easily accessible room or allowing extra time for selection tests.

If a disabled applicant asks for an application form in an accessible format you should comply with the request if it is reasonable to do so.

Interviewing

When interviewing people for a job there are certain questions you should not ask, such as whether a candidate is married, is a partner in a same-sex civil partnership or plans to have children. Also, there are restrictions on questions that may be asked about disability or health.

If a candidate has informed you in advance that they are disabled you should ask them if there are any reasonable adjustments you might need to make to enable them to attend and participate in the interview.

You must only ask health- or disability-related questions that are relevant for the role. For example, you need to find out if candidates are able to carry out functions that are necessary for the job. Or you want to exercise positive action in the recruitment of disabled people by increasing the proportion of disabled employees you employ.

Record-keeping

You must always be able to justify your decision to recruit a particular person. Therefore it is a good idea to document the recruitment process as much as possible. This will help you provide evidence to an employment tribunal if you are faced with a claim of unlawful discrimination.

There is more advice about how equality law affects recruitment on the Equality and Human Rights Commission website.

The ACAS website also has advice on recruitment.

Women and men are entitled to equal pay for work of equal value.

'Pay' includes not only wages/salary but also contractual terms and conditions.

If you pay men and women the same basic pay for the same job, their pay may still be unequal because of other benefits. For example, their pay would be unequal if benefits such as company cars and private healthcare, were different for men and women.

Work may be different from that of a colleague of the opposite sex but it can be considered of equal value if it is similar or the same in terms of the demands of the job.

Employees are entitled to request key information from you by asking directly or they can fill in a special questions form. You are not obliged to respond but, if you wish to, you can use the special answers form.

If you choose not to respond, it can count against you should the matter reach an employment tribunal, as can giving an evasive reply.

You may be able justify differences in pay as long as you can show that gender was not a factor. For example, you could pay more to employees who:

• work in an area where the cost of living is higher
• you want to retain as you would find it difficult to replace them

Age discrimination

Since the removal of the Default Retirement Age (DRA) employers are no longer able to force employees to retire just because they have reached the age of 65. In general, it is unlawful for employers to treat individuals less favourably than others because of age.

You should check that your recruitment process is non-discriminatory. For example, it would be direct discrimination if an employer refused to employ people under the age of 30. It is a good idea to place advertisements in publications read by a range of age groups.

You must also make sure that your redundancy procedures are based on business needs rather than age. For example, it could be discriminatory to select employees for redundancy solely on the basis of 'last in, first out'.

There are limited circumstances when age discrimination can be lawful. For example, your business serves alcohol so you need people to be at least 18 years of age.

However, exceptions are rare and unjustified discrimination can be challenged. There is also no limit on the awards which can be given to an employee who has been proven to be mistreated by an employer, even if that person is employed for just one day.

Race discrimination

It's unlawful for an employer to discriminate against someone on the grounds of:

• race
• national origin
• ethnic origin
• nationality, including citizenship

Direct discrimination would occur if, for example, an employer refused to employ someone because they were not white and Scottish.

Discrimination on the grounds of religion or belief

It is unlawful for an employer to discriminate against someone on the grounds of:

• religion - this means any religion
• belief - this covers any religious or philosophical belief
• lack of any religion
• lack of any belief

Neither religion nor belief is defined by law. However, belief could cover things like atheism and humanism.

It would be direct discrimination if, for example, an employer paid Christians more than non-Christians.

Discrimination on the grounds of disability

Under the Equality Act 2010, it amounts to unlawful disability discrimination if an employer:

• Treats a disabled employee or job applicant less favourably than others because of their disability. For example, an employer refuses to employ someone even though they are suitable for the job, simply because they are a wheelchair user. This is direct disability discrimination, which can never be justified.
• Has a policy or procedure which, although it applies to all individuals, puts those who share the same disability at a particular disadvantage when compared with those who don't share it. This is indirect discrimination.
• Treats an employee/job applicant unfairly because of something arising from their disability. For example, an employer dismisses an employee because of their long-term absence caused by having an arm amputated following a car accident. This is referred to as discrimination arising from disability.
• Fails to comply with its duty to make a reasonable adjustment for a disabled employee/ job applicant. This type of discrimination cannot be justified.

What counts as a disability?

In general, the Equality Act 2010 considers someone to be disabled if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

However there are special rules that apply to people with certain impairments like progressive conditions. Also, some people are deemed to be disabled people, for example those with HIV, cancer and some visual impairments.

In addition, a mental illness does not have to be 'clinically well-recognised' before it is judged to be a mental impairment for the purposes of the Act.

Reasonable adjustments

Employers have a legal duty to make reasonable adjustments to enable a disabled person to work or continue working if they would otherwise be at a substantial disadvantage compared with non-disabled workers.

These adjustments include any provision, criterion or practice, or to physical features of their premises. Reasonable adjustments often involve little or no cost to your business.

Marriage and civil partnership

You must treat married employees and employees in civil partnerships in the same way. This means that any benefit such as private healthcare that is available to the spouses of employees should also be made available to employees' civil partners.

However, you can give benefits to employees who are married or in civil partnerships, but not to those who are unmarried or not in civil partnerships.

Sex, maternity and pregnancy

If an employer dismissed a woman because she was pregnant or asked to take maternity leave it would be direct sex discrimination.

However, it may be possible to state that a job holder must be male or female where being of that sex is an occupational requirement.

The law makes sexual harassment - and harassment related to sex - explicitly unlawful in employment or vocational training. Sexual harassment can include insensitive jokes, displays of sexually explicit material, sexual innuendos or lewd comments or gestures. It also includes the circulation of lewd emails, even if this is not actually sent to the person being harassed.

Gender reassignment discrimination

It's unlawful to discriminate against a person on the grounds that they have undergone, are undergoing or intend to undergo gender reassignment.

It's also unlawful to treat such a person less favourably than a person who is off sick for another reason and similar period.

A person is protected from gender reassignment discrimination from the date they tell a medical practitioner that they want to undergo gender reassignment.

Before any surgery, someone undergoing gender reassignment (a 'trans person') needs to live as a member of the opposite sex. This will include using gender-appropriate single-sex toilets. Therefore you would need to discuss with the individual when they wish to change from using one set of facilities to the other. This will probably be during the 'social gender' transition, when they present as members of the adopted sex even though they don't have any of the physical characteristics of that sex.

Once a trans person's gender reassignment is complete, they can register their change of gender via a gender recognition certificate (GRC). Once they have a GRC, they will be issued with a new birth certificate in the acquired gender. This would mean that you would have to treat a male-to-female trans person with a GRC as a woman and, for example, change your personnel records to reflect this.

In order to promote equality and diversity in the workplace, you should have a written equality and diversity policy.

Equality and diversity policies

As a business owner or manager, you may be held responsible for any discriminatory action by your employees if you cannot show that you took steps to try and prevent it from occurring.

One of the main ways of doing this is to have an equality and diversity policy. This would be backed up by action plan to promote the policy and ensure that it is understood and followed across the business.

The policy should set out your commitment to promote equality and diversity in areas such as recruitment, training and pay to tackle discrimination.

It should also:

• help your employees understand what you expect of them, for example, to treat their colleagues and clients with dignity and respect
• set out your employees' legal rights and obligations

The Acas Model Workplace

The Acas Model Workplace tool can help you assess the effectiveness of your equality and diversity practices and give you guidance on setting up and maintaining good employment relations. You can find out about the Acas Model Workplace on the Acas website.

Equal pay reviews

You may wish to consider carrying out a pay review to see if there are any imbalances. They aim to ensure that all staff enjoy the same pay and conditions while doing similar types of work.

The reviews can help avoid 'glass ceiling' working cultures, where certain types of people don't get promoted above specific levels. These reviews can also help make sure that an equal pay policy is working.

Equal pay reviews may be carried out by someone within the company trained to deal with equality issues or they may be conducted by an outside team of specialists.

You should monitor equality and diversity to examine if your equality policy is working effectively.

For example, if you find that your workforce is not as diverse as it should be, you will need to find out why and take action to improve the effectiveness of the policy.

What is monitoring?

Monitoring involves gathering information on the diversity of your potential recruits or existing employees. This data can be compared and analysed against data about other groups of employees in your company, jobseekers in your local community and the national labour market.

It is unlikely that you will find exactly the same proportion of men and women or other groups. Monitoring is about looking for significant differences between groups or identifying trends over periods of time and then finding out why.

Getting employees involved in monitoring

To get the best out of the process, you may need to explain to some staff the benefits of monitoring.

For example, some employees may feel uncomfortable about filling in monitoring forms. If so:

• reassure them that you will treat any information they give as confidential
• explain to them that you are carrying out the monitoring process to make your equality policy a reality
• point out that a successful policy is good for business

It may help if you involve workplace representatives in explaining what monitoring is for.

If you do not have any representatives in your organisation, consider setting up a working group. This can act as a point of contact for employees if they want to raise any concerns.

You will also need to:

• encourage external job applicants to complete the monitoring form
• reassure staff that all information collected will remain strictly confidential
• select a senior manager or member of staff to champion the monitoring process
• decide on the best way to communicate your message, for example, via magazine articles or a dedicated intranet site

Make sure that each question has an option of 'prefer not to say'. However, do not make completion of a monitoring form compulsory or in any way 'punish' those who refuse to cooperate.

Getting the monitoring data from job applicants

It is a good idea to ask job applicants for monitoring data on a sheet that can be detached from the application form. That way the information can be kept separate from the selection process.

Make it clear that the information will only be used for equality monitoring and not for short-listing.

The type of information you should collect

You should - at the very least - collect information based around the six main strands of equality legislation:

• age
• race
• gender
• disability
• religion or belief
• sexual orientation

What you should attempt to find out

It is good practice to monitor your employees at every stage of their employment - from recruitment right through to when they leave.

This means finding out:

• who applies to work for you
• who you interview and who you finally recruit
• who you promote
• who you train and in what work areas
• who raises grievances at work
• who you discipline and what for
• who is absent or sick and for what reasons
• who you dismiss
  • who leaves the organisation

Understanding and interpreting monitoring data

Monitoring is about making comparisons between groups of employees or job applicants and, if there is a real difference, finding out why.

Bear in mind that any difference in itself is not necessarily bad. It would be very surprising if the number of job applicants was split 50-50, for example, between men and women.

The Equality and Human Rights Commission has guidance for employers about their rights under equality law.

Read our guide Set the right pay rates.